Summary:
Action by the People of the State of Colorado against William J. McCausland. From a judgement overruling defendant's motion to dismiss and finding him guilty of cruelty to animals, he brings error. Affirmed.

Cruelty to animals not being a crime or misdemeanor at common law, malice is not an essential ingredient of that offense created by Rev. St. 1908, sections 1910, 1923, not being expressly made so by the statute.

Rev. St. 1908. Section 1910, provides that every person who overdrives, overloads, overworks, tortures, torments, deprives of necessary sustenance, unnecessarily or cruelly bears or needlessly mutilates or kills or carries in or on any vehicles or otherwise in a cruel or inhuman manner any animal, shall on conviction be punished. Held , that the words "in a cruel or inhuman manner" relate to the phrase immediately preceding them, concerning the carrying of animals, and do not qualify any of the other several preceding words or phrases each of which in and of itself indicates a complete offense, and hence a complaint, charging that accused did torture, torment, unnecessarily and cruelly beat, and needlessly mutilate a certain horse, etc., was not defective for failure to charge he did so in a cruel and inhuman manner.

Where a justice of the peace had jurisdiction of a prosecution for cruelty to animals, objections that he set the case for hearing more than 10 days off, contrary to the statute, and issued a warrant before the complaint was filed, related to matters of form only, and were waived by defendant's appeal from the justice's judgment to the county court.

Action by the People of the State of Colorado against William J. McCausland. From a judgement overruling defendant's motion to dismiss and finding him guilty of cruelty to animals, he brings error. Affirmed.

BAILEY, J. This is an action commenced in a justice's court in Routt county, against William J. McCausland, plaintiff in error, resulting in a judgment against him in the county court, to which he took an appeal from an adverse judgment in the justice's court. The complaint upon which trial was had charges that:

"William J. McCausland, on the 8th day of July, 1910, in said county, did torture, torment, unnecessarily and cruelly beat, and needlessly mutilate one roan gelding (horse) contrary to the form of the statute," etc.

Defendant interposed a motion to quash on the ground that the complaint or information does not state facts sufficient to constitute an offense or crime under the laws of the state of Colorado, which was overruled. Upon trial, defendant's motion for dismissal for want of sufficient evidence having been overruled, the court, the cause tried before it by consent, found defendant guilty and imposed a fine of $10, and costs. He prosecutes this writ of error.

"Every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, unnecessarily or cruelly beats, or needlessly mutilates or kills, or carries in or upon any vehicles, or otherwise in a cruel or inhuman manner, any animal * * * shall, upon conviction, be punished, * * *" etc. Section 1910, R. S. 1908.

"In this act the word 'animal' shall be held to include every living dumb creature; the words 'torture,' 'torment' and 'cruelty' shall be held to include every act, omission or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted or allowed to continue when there is a reasonable remedy or relief, * * *" Section 1923, R. S. 1908.

[1] The statute embraces separate and distinct offenses. The offense charged was not a crime or misdemeanor at common law, and therefore malice is not a necessary ingredient, since not expressly made so by statute. 1 R.C.L. Sections 108, 109.

[2] It is contended that as the charge did not contain the words of the statute "in a cruel or inhuman manner" it was insufficient. These words relate to the phrase immediately preceding them, concerning the carrying of animals. They cannot be said to qualify any of the other several preceding words or phrases, for each of them in and of itself alone indicates a complete offense. That portion of the statute relating to the carrying of animals, when properly understood, must be held to mean that every person who carries in or upon any vehicle, or otherwise carries, in a cruel or inhuman manner, any animal, shall upon conviction be punished, etc. This is only one of several offenses embraced in the statute.

[3] It is further contended by plaintiff in error that a charge in the language of the statute does not sufficiently set out the facts which constitute the offense; that the words of the statute are so general and broad as to embrace cases which fall within its terms, but not its spirit, and therefore it was necessary to allege in the complaint specific facts to bring the case within the inhibition of the law. Among other things, the complaint charges that the defendant did "unnecessarily and cruelly beat" one roan gelding (horse). This was sufficient. State v. Watkins, 101 N. C. 702, 8 S. E. 346; State v. Allison, 90 N. C. 733; Commonwealth v. Lufkin, 7 Allen (Mass.) 579. In Bishop on Statutory Crimes (3d Ed.) section 1115, it is said:

"Under the statutory word 'beat,' as in the expression 'cruelly beat any horse,' it is sufficient to say, in allegation, that the defendant 'did beat' the animal, not specifying more minutely the beating. For the idea is simple, and this word alone adequately particularizes the act and the instance."

In State v. Watkins, supra, the indictment charged that the defendant "did * * * torture, torment and act in a cruel manner," etc. The court said:

"These are words of the statute, but they are not precise in their meaning; they designate rather than define the offense or suggest the act that constitute it; they do not, of themselves, import what is meant by the statute; in pleading, they need to be aided by charging acts that certainly imply what is meant by the term torture and torment, and they should be so charged as that the court can see that they do. If the charge contained in the proper connection one or more of the words beat, wound, shoot kill, and the like, * * * such precise and pertinent words would have implied the offence forbidden."

Upon principle and authority we conclude that the offense was sufficiently charged.

[4] Objection was made in the county court to the jurisdiction of the justice's court, and also to that of the county court to the jurisdiction of the justice's court, and also to that of the county court on appeal, because of the lack of jurisdiction in the justice's court. The objections urged are based on the claim that the justice set the case for hearing more than ten days off, contrary to the statute, and issued the warrant before the complaint was filed. The justice undoubtedly had jurisdiction of the subject-matter, and since the objections under consideration go to matters of form and procedure merely, they were such as could be and were waived by the defendant when he took an appeal to the county court, which also had jurisdiction of the subject-matter, and there contested the charge on its merits.

The evidence supports the judgment, and it should be affirmed.

Judgment affirmed.

MUSSER, C. J., and WHITE, J., concur.

* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes